East and Horn of Africa: Free expression and law in 2011

Article 19, East and Horn of Africa: Free expression and law in 2011, 5 April 2012, available at: http://www.refworld.org/docid/4fa792f72.html [accessed 3 August 2015]

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In this statement, ARTICLE 19 outlines the main legal developments regarding freedom of expression and freedom of information in East Africa in 2011, in particular:

Ethiopia

Eritrea

Kenya

Uganda

Somalia

Tanzania

Rwanda.

The statement covers:

new legal and policy developmpents

key judicial decisions that have had a serious impact on the protection of freedom of speech.

Overview

Positive trends and developments

There have been some positive developments in the region, as well as a number of successful campaigns by human rights advocates.

In Kenya and Rwanda substantive drafts of freedom of information legislation have been developed, involving civil society in ongoing consultation processes. On the regional level, ARTICLE 19 commends the adoption in 2011 of the African Platform on Access to Information.[1] This has been developed by groups across Africa, including ARTICLE 19. The Principles contained in this document stipulate that:"access to information is a fundamental human right""the right of access to information shall be established by law in each African country."

They provide guidance to African states on the right to freedom of information, including the importance of:battling corruptionprotecting whistleblowerspromoting unhindered access to Information Communication Technologiespromoting access to electoral information.

The document has been endorsed by both the UN Special Rapporteur on Freedom of Opinion and Expression and the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and Peoples' Rights.

ARTICLE 19 also welcomes the draft of a model law on Access to Information by the special Rapporteur on Freedom of Expression of the African Commission for Human and Peoples' Rights.. Stakeholders' views and input are now invited .Human rights defenders and free speech activists have continued to campaign for change through:involving stakeholders in consultation on draft lawslobbying for repeal of existing lawsengaging with regional and international partnerspublicising violations of expression and information rights in their countries.

Negative trends and developments

Restrictive legislation in all East African countries continues to operate, with no signs of the acts that violate international and regional standards on freedom of expression being repealed.

Reports of attacks on journalists continued in 2011.

There were no reports of perpetrators being brought to justice as a result of deaths, assaults and other forms of harassment of journalists and human rights defenders.

The proliferation of technology in the region has had a mixed impact on freedom of expression and information.

In Uganda, social media has been shut down, for example to hinder the dubbed 'walk to work' protests against the high cost of living.

In Ethiopia and Eritrea, the continued high level of control and monitoring of the Internet and other media by both governments continues, as does political censorship and heavy government control of the infrastructure.

In Kenya and Rwanda, the race to meet the global digital switchover deadline may be at the expense of access to information for those who cannot afford the "switchover" technology needed to continue to access television services. There are no comprehensive regulatory or legislative frameworks governing the process or the new digital environment. The focus of these governments seems to be more on the required infrastructure and technology needed to meet the switchover deadlines rather than a balanced approach, which considers both the infrastructure and the required legal frameworks.

The situation in more detail

The following sections cover these developments in greater detail along with ARTICLE 19's position.

Constitutional Protections

Uganda In May 2011, President Yoweri Museveni announced an amendment to the constitution of Uganda, which includes an "economic sabotage" provision. The proposed constitutional offence is vague and broad and does not meet international standards of legitimate limitations on freedom of expression. The amendment, which has not yet been adopted, could have a detrimental effect on media freedom:

The authorities could use it to charge journalists who cover protests such as the walk to work protests about the escalated cost of living in Uganda with "economic sabotage"

I would also prohibit bail for the first six months for anyone charged with "rioting" or "economic sabotage"

The amendment sets exessive and harsh criminal sanctions in violation of international standards on freedom of expression.

Regulation of the Media

In 2011, the majority of countries in the region have not passed, proposed or amended any laws pertaining to media regulation. Only Rwanda adopted such a law. Draft laws remain in place, some still under debate, others continuing to be overtaken by other national agendas. New broadcasting regulations were proposed in Ethiopia and Rwanda.

Kenya Stakeholder discussions continued to be held about the amendments of the 2010 Media Bill and the 2010 Independent Communications Commission Bill.

The Media BillThe amendments contained in the Media Billseek to align the the way the Media Council functions with the 2010 Constitution of Kenya,in particular with its provisions on freedom of expression and freedom of the media.Although limited in scope, the proposed changes are not insignificant, as they will substantially overhaul the process of appointing Council members..ARTICLE 19 expressed significant reservations about the concept of the statutory regulation of media ethics and standards. A number of provisions raise concern about the compatibility of the Bill with international law and constitutional protections of freedom of expression.Positive features of the Bill include the proposed Code of Ethics which is mostly compatible with international standards.

The Independent Communications Commission BillThe Bill aimed to establish a fully independent broadcast regulatory body to replace the existing Communications Commission of Kenya (ICCK) in all of its functions. This reform is necessitated by new provisions introduced into the new Constitution in 2010. ARTICLE 19 welcomes and supports the initiative to establish a genuinely independent communications regulator. One of the key implications of the right to freedom of expression as guaranteed in international law is that broadcast regulation should be overseen by bodies which are independent, in the sense that they are protected against political or commercial interference.

Rwanda The Government continued toreview various laws that regulate media.

The new Media Law remains of concern to ARTICLE 19 since it contains a number of problematic areas such as:overly broad definitions of 'journalist', 'defamation' and 'news item'removal of powers from the Minister of ICTlack of safeguards against abuse of those powerslack of independence of the Media High Council.

The new Penal Code represents a serious regression in the protection of the rights of expression and information, notably:broad definitions of 'genocide ideology,' 'national security' and 'public order' are problematicretaining defamation as a crime with severe custodial sentences.

The Broadcasting Agency Law 2011 was adopted by the Chamber of Deputies in August 2011the Chamber of Deputiesbut parliamentary approval is still pending. Under the law:The Rwanda Broadcasting Agency will be a public broadcasting group with 20% Government shares and 80% investors.A state mechanism will be established to intervene when necessary. According to ARTICLE 19, such intervention should be clearly defined and parameters clearly articulated. Any such mechanism must be based on the principles of protecting media freedom and promoting journalistic ethics.

ARTICLE 19 appreciates that the Government of Rwanda has shown support for media self regulation through its:

willingness to work with media practitioners

engagement with civil society

engagement with both regional and international rights advocates

protection of media freedoms through the initiated media sector review.

The extent of transformation within the Rwanda media sector will only be clear once the media sector review period is complete.

Uganda The 2010 Amendment to the Press and Journalist Bill remained a threat to the protection of freedom of speech. ARTICLE 19 has continuously criticised this Bill for its serious implications for press freedom. If passed it will:

require annual licensing for print media

give broader authority to the Media Council to withdraw or refuse licenses on vaguely defined conditions.

In 2011 no changes were made to the Bill. It remains on hold in Parliament.

Ethiopia: In December 2011, the Ethiopian Broadcasting Authority prepared a draft Proclamation to govern the advertising business. The draft takes a broad stroke approach to sanctions for violation of the rules on advertising, which limits freedom of expression. Evidence of this is seen in provisions that prohibit advertisements which do not protect the interests and dignity of the state or prohibitions of "unfair content."

These and other similar statements should be amended to remove ambiguity and the potential for illegitimate limitations on freedom of expression. Others, such as the "dignity of the state", which are not prescribed limitations to freedom of expression under international law, should be deleted.

Kenya, Rwanda and Uganda These countries continue work to meet the worldwide digital switchover date of June 2015. In 2011, these countries have:

made decisions

taken action regarding infrastructure and signal distribution

attempted to address key challenges in the process, such as cost and citizen awareness.

The outstanding issue in the region at this time is the designation of signal distribution and the issues arising as a result. ARTICLE 19 called upon the Communications Commission of Kenya to ensure that the focus does not remain solely on the infrastructure and technological aspects of the switchover.

Of vital importance are the legislative and regulatory frameworks that will govern the pre- and post-switchover processes: the right to information must be safeguarded. The introduction of digital technology is set to bring new improvements and opportunities in access to information, free expression and plural media and communication. ARTICLE 19 emphasised that it is essential that this process respects human rights and, in particular, the right to freedom of expression. It is of the utmost importance that people are not excluded from access to broadcasting as a result of digitalisation: appropriate policies should be put in place.

Regulation of Information and Communication Technologies

In East Africa, the focus has so far been on the technology aspect and the majority of governments have not demonstrated an approach which protects or considers rights and associated issues in the regulation of information and communication technologies. Rights of expression and access to information have not been at the forefront of any legislative agenda.

Kenya In September 2011, it was reported that the Communications Commission of Kenya (CCK) planned to order telecommunications service operators to deny services to "counterfeit" phones by a prescribed date. This would affect between 9-20% of mobile phones in the country, either because:

the phone was made without an IMEI registration code

the code has been removed.

It was later announced that this plan will be implemented in two phases: the preparatory one and the second one, from 31 December 2011, during which the service providers should deny service to all other "counterfeit" handsets. ARTICLE 19 urges the Commission to apply freedom of expression standards in this area and protect consumer rights.

Freedom of Information and Data Protection

In 2011, major legislative activity involving freedom of information laws took place in Kenya, Rwanda and Uganda. In Kenya and Rwanda, these included the drafting of bills, while Uganda adopted regulations to implement Uganda's Access to Information Act of 2005.

Uganda On 21 April 2011, the Government signed into law new regulations regarding the implementation of Uganda's Access to Information (ATI) Act of 2005. Although many awaited these regulations, they have been widely criticised for:

making access unnecessarily costly

requiring citizens to follow difficult and burdensome procedures

offering little or no guidance to agencies implementing them.

Rwanda On 1 June 2011, the Cabinet approved an Access to Information Bill, with a view to it being adopted by Parliament in September 2011. However, at the end of the year, the Bill was still pending parliamentary approval. ARTICLE 19 continues to urge the Rwanda Government to speed up the adoption of this important legislation. We believe that, if adopted in its current form, it could become a model for both the region and for the whole of Africa. However, the existing draft could be improved by:

making it apply to private bodies

improving the scope and duration of exemptions

specifying the fee regime and powers and funding given to the Information Ombudsperson

providing protection for whistleblowers.

Kenya In 2011, the Government produced two draft laws in this area. The first was the Data Protection Bill, regulating the collection, processing, storage, use and disclosure of information about individuals which is processed by automated or manual means for related purposes. ARTICLE 19 appreciated some positive features of the Bill. However, we urged the Government to introduce a number of changes including:

exempting criminal records from the law

ensuring funding to the special Commission

improving the regime of exceptions

banning the collection of personal information that would limit the right of freedom of expression of an individual.

In August 2011, the Government also released the fourth draft of the Freedom of Information Bill. The drafting process continues with final opportunities for stakeholders and the general public to have input into the Bill before the final draft is forwarded to Parliament for debate.

Freedom of Association and Assembly

Uganda In October 2011, the Public Order Management Bill 2010 was tabled in Parliament. The Bill is very problematic from a human rights perspective for a number of reasons:

it introduces a requirement for organisers to seek permission from the police before holding a 'public meeting'. A public meeting is defined very broadly to include:a meeting of three or more peoplein a public placein any discussion on principles, policy, actions or failure of any government, political party or political organisation.

Under the provisions of the Bill, meetings in restaurants, shopping centres or other public places between friends, colleagues and family members, who happen to discuss politics, could constitute a public meeting. Without prior permission, they would be acting illegally.

Individuals can be imprisoned for up to two years for breaching this requirement

It gives police the power to use firearms in situations where the use of lethal force may not be justifiable; for example, in arresting a person presenting 'danger' and resisting the authority of the police officer.

It does not provide any safeguards against disproportionate use of firearms by the police.

The government of Uganda continues to insist it will not withdraw the Bill.

Our recommendations

ARTICLE 19 will continue to monitor progress on these issues and stands ready to assist governments and civil society organisations in the region in advancing legal reforms. We also reiterate our support to all governments, civil society organisations and reform movements in upholding and respecting the rights to freedom of expression and information.

In the year ahead, these cornerstone rights must be placed at the top of the reform agenda and be fully integrated in any new or revised legal frameworks and instruments. In particular, ARTICLE 19 calls on the governments of the East and Horn of Africa countries to:

Repeal or amend legislation and provisions that are inconsistent with international principles of the freedoms of expression and information which they are bound to uphold, protect and advance

Enact freedom of information laws and other laws that articulate, oversee and protect right to freedom of expression and information

Prosecute perpetrators of violence against journalists and adopt strict 'no tolerance' approaches in this area

Adopt proactive measures to educate the public about freedom of expression and information

Eliminate state control over the media and foster conducive environments for media self- regulation

Decriminalise defamation within national law

Continue co-operation and engagement with:advocates for freedom of expression and informationcivil societyregional and international partners.